Posted
by
Zonkon Thursday October 26, 2006 @04:46PM
from the barred-from-blogging dept.

An anonymous reader writes "While you might not guess it from watching late night TV, advertisements by lawyers are regulated by a web of regulations intended to protect potential clients from deceptive claims in such ads. Generally, these rules require lawyers to submit their ads to a review board, often with a filing fee paid with each new advertisement. The New York bar has proposed new rules which would define blogging as advertising. Should these rules be enacted, any New York lawyer who blogs on any legal topic in New York would be required to submit any new blog post to the New York Bar for review. For New York lawyers who write frequently updated blogs, this could force them to make multiple (and potentially expensive) reports to the New York Bar every single day."

Then why are they so clearly considering violating the First Amendment rights of other lawyers in New York?

The bar association can condition the practice of law on adherence to regulations that, were they laws rather than conditions attached to the practice of law, would be Constitutionally barred, because practicing law isn't a right.

The bar association can condition the practice of law on adherence to regulations that, were they laws rather than conditions attached to the practice of law, would be Constitutionally barred, because practicing law isn't a right.

Assuming that the bar association is a private organization, I agree that they have the perogative to certify (or not certify) whoever they wish. However, one thing I've never seen properly explained: what keeps someone who isn't certified by the bar association from practicing

IANAL, but what you say makes sense. That is, the bar assn. would appear to be a monopoly, and as such one would think it would be subject to certain restrictions. That is, if the use their position as the only entity that will allow lawyers to work to force a laywer to choose between their livelihood and being able to express first admendment rights to free speech, then would the bar not be potentially violating Taft Hartley anti-trust regulations?

However, one thing I've never seen properly explained: what keeps someone who isn't certified by the bar association from practicing law?

In Washington state for example, the State Bar Act [wa.gov] defines who can and cannot practice law under various circumstances. It looks like the meat of the prohibition is at RCW 2.48.170 [wa.gov] and RCW 2.48.180(2) & (3) [wa.gov]. So google for your state's statutes -- they're almost certainly provided free online. This isn't legal advice.

In Washington state for example, the State Bar Act defines who can and cannot practice law under various circumstances. It looks like the meat of the prohibition is at RCW 2.48.170 and RCW 2.48.180(2) & (3). So google for your state's statutes -- they're almost certainly provided free online. This isn't legal advice.

Ah, thanks for that. It appears to be a simple licensing requirement, which would put it squarely in the category of state-supported monopoly priviledge and competition-avoidance. (An ea

Or is it perhaps just a way of avoiding competition? It certainly does help to raise the barrier to entry into the legal profession, limiting the supply of legal services and driving up the price.

One point that the other respondents didn't mention is that law is licensed in a manner akin to medicine in order (at least theoretically) to protect the public. In a free marketplace, it can be difficult to judge the quality of one provider as opposed to another. If you're disappointed by some guy who claimed he

One point that the other respondents didn't mention is that law is licensed in a manner akin to medicine in order (at least theoretically) to protect the public. In a free marketplace, it can be difficult to judge the quality of one provider as opposed to another.

Which, of course, is why private "consumer report" agencies exist. There is no reason why there could not be private bar associations, or medical licensing organizations, run on the same model as the private ASE certification for auto mechanics

$100/hr??? 99% of my clients are lawyers and they regularly bill upwards of $300/hr

Of all the people to attempt to deprive of their rights, lawyers would be right at the bottom of my list. They seem quite well equipped to defend themselves.

So yeah, I'm not remotely worried about this. If Paypal wanted to prevent homeless people from asking for spare change via Paypal over the internet, then I guess I'd take even that a little more seriously.

Of all the people to attempt to deprive of their rights, lawyers would be right at the bottom of my list. They seem quite well equipped to defend themselves.

They are only equipped to deal with threats within the system. As soon as you change the system (e.g. switch to Despotism), lawyers instantly become obsolete since the law has changed overnight. They can retrain themselves, but it does not change the fact that law is on a whim of a despot.

Childhood friend of mine's dad is a local lawyer.He normally goes upwards of $1K+/Hr. His Jr. lawyers in his firm are $250-500/hr and do most the work. He usually only bills his hours when the client insists he handle the case, or when in court and such.I helped him with his PBX and a couple other little PC things. He was quoted an absurd ammount of money (to the tune of $8K) for what took me about an hour or so to do. I told him "no worries" and went out to lunch with him (he bought) and that was good enough for me.

Some years later I had a *real issue* at work with a way out of control manager (involved verbal and physical abuse, threats, and a knife). Gary gave me about 10 hours of his firms time and saved me from making some stupid, but not so obvious, mistakes when dealing with HR and legal. The end result is that I am still employed (so unfortunately is the manager) and I will never have to work with or under him again.

FF another few years to the link in my sig, again Gary to the rescue. He proof read my response to the C&D letter and blessed it as "an excellent response" along with some other wonder advice.

Moral? It never hurts to have an excellent lawyer think he owes you more than he does:-)-nB

Funny story time:When I was in college I worked at a mom and pop PC store. Mom and pop we're unfortunately going through a terrible divorce that involved the insurance saleswoman next door. My boss got a bill from his lawyer one day and called me into his office. His lawyer had a 30 minute minimum and billed him 30 minutes each for 1 or 2 minute phone calls. He was pissed. Anyway, the divorce was finalized and several months later his lawyer started calling with PC problems. I was instructed to carefu

Fortunately, though, the various bar associations and other lawyer groups are very concerned about the rules, and are putting in detailed comments explaining how the proposed rules are too overbroad. And the Appellate Divisions have postponed the proposed effective dates, in order to give the legal community and the public at large more time to comment.

Arguably my entire membership in Slashdot would indeed count, since my profile identifies me. It would of course be impossible to comply with those rules, so I might just have to stop participating in Slashdot, which for me would be sad indeed. I have really come to enjoy it here.

Blogs by lawyers are a pretty new thing, but I think they have made a significant contribution. I think it would be a shame if we had to stop blogging just because we're lawyers.

I don't think the proposed rules will be passed in that form, so I'm not too worried.

For those of you who haven't seen the proposed rules, they're posted here [nycourts.gov].

If those rules go into effect, both of my blogs, Recording Industry vs. The People, and Ohio Election Fraud (formerly "Fairness"), along with my web sites, info.riaalawsuits.us and Ohio Election 2004 would be taken down, as it would be far too costly and time consuming to comply with the new rules. See my collection of articles on New York's rules and the impact they would have on lawyer blogs herej.

In order to comply with the rules I would have to label every page an "advertisement", which they are not, and I would have to file copies of each and every page every day. I couldn't afford the time and money it would take.

Thank you for the reference. I've read the proposed amendments. However, I have not found any reference to the threat you are speaking of. Could you please refer to (or quote) a section in the proposed amendments that would require you to label your blog as advertisement and require reporting to the NYS bar?

I'd be very sad to see your blogs go away.. they're a valuable resource. If you're not careful, you'll give lawyers a good name:)[Actually, most of the lawyers I know are good people.]

I am wondering if this ruling sticks, if it could be extended to affect sites like GrokLaw, or anyone directly employed by a lawyer (your employees aren't allowed to "advertise" by collaring folks on the street either, right?)

ISTM all that's really needed is a boilerplate disclaimer that the blog is a personal endeavour and i

I'm not getting too much into the details because I don't think the rule revisions in their present format are going anywhere. See the comments [riaalawsuits.us] of the Association of the Bar of the City of New York. I'm sure the rule revision will be much, much narrower than what they first proposed.

I think the reason it was so fuzzy-broad was that the authors were not sufficiently conversant with the technology to understand what a burden it would be on legitimate discussion. I think there was 'another agenda' in the sense that the draftsmen were probably overreacting to a couple of annoying and ianppropriate things they'd seen, and going after them with a shotgun instead of something more targeted to the specific problems.

Well then! We need only convince them that blogs are merely ordinary magazines, printed with extremely poor-quality ink.:)

Actually, that might make a reasonable argument: print out the blog on the one hand, and have the online version onscreen on the other, and ask them to define the practical difference: "How does this text differ from that text? It doesn't? Horrors!!"

Content based regulation is generally not allowed by the first ammendment.

Content based regulation of commercial speech is allowed, within bounds, by the first amendment (and commercial speech is what is at issue with advertising regulations), and, anyway, there is no right to practice law, and states (through bar associations) can condition the practice of law on adherence to regulations that would not be valid as laws governing the general populace (which is why bar associations can prohibit advertising,

There are an insane number of lawyers in New York. If 1% of them sent in a blog post check request every day for a week you probably wouldn't be able to stand in the bar associations hall and USPS would be profitable again. They might even be able to put some of those blue mailboxes back on the streets again.

(k) "Advertisement" means any public communication made by or on behalf of a lawyeror law firm about a lawyer or law firm, or about a lawyer's or law firm's services.

I think it's reasonable to call a lawyer's blog a public communication made by that lawyer about that lawyer. And that fits the proposed definition of advertisement. That seems to be a broad definition of advertising.

I disagree. My blogs, and even my Slashdot profile, identify me and who I am. Under the proposed rules that could make the entire publication "an advertisement". No lawyer who wants to keep on being a lawyer is going to take a chance on that.

It's settled, then. What we need is a renegade lawyer on the edge. Two days from retirement. His partner's dead, his wife left him for a terrorist kidnapper, and he's out for justice... First Amendment justice. And yes... oh, yes... he's blogging.

My blogs, and even my Slashdot profile, identify me and who I am. Under the proposed rules that could make the entire publication "an advertisement". No lawyer who wants to keep on being a lawyer is going to take a chance on that.

That aside, though, this reeks more of the NY bar just wanting some money. If this actually happens, we'll have to see how it pans out.

The New York State bar is run by the New York Supreme Court, Appellate Division. They are constitutionally guaranteed pay to uphold their impartiality and independence. They cannot profit, or even have income, and any such notion would fundamentally contradict the constitution that defines the entire judicial branch of US government.

You have not read the rules correctly. It is nowhere limited to actual solicitation for services. It applies to all electronic communications which are "about a lawyer" and "by a lawyer", which would probably apply to all law firm web sites, internet and email newsletters, and to any legal blog where the lawyer actually identifies himself. If you think there is a section restricting the rules to "actual solicitation of services" please point to that section. Here are the rules:

My first impression from the headline was that there was a tavern in New York that was taking a stand against lawyers doing their blogging while sitting around in bars. My first thought: "Bars in New York have wireless internet?"

...who read the headline, and immediately thought that some bar in New York was having problems with lawyers taking up the tables with their laptops, blogging away all night and taking the space away from paying patrons?

Lawyers are like traffic, nobody really thought about them when designing the sytem, but they are inherent because of the way the system was designed. Unlike traffic, they have a lobby group fighting for their survival (the Bar).

No, no, the thing that keeps the cost of lawyers up is the fact that the justice system is set up to utterly screw you, even in trivial matters, unless you have a lawyer well-known to the Court by your side.Result: almost infinite demand for lawyers. Infinite demand + finite supply = very high equilibrium price. I don't think the cost of doing business (including advertising) is significant. If it were the profit margin on lawyering would be slim, and we all know that's not the case, har har. And some p

Now, if the system were arranged so that for routine matters you could just go into Court yourself and put your case plainly without fearing for your life, the demand for lawyers would be reasonable, and their price more in line with the value of their service.

Have you ever tried? I don't know a lot about US procedure, but over here in the UK it's actually fairly easy to go to court without a lawyer, and they do a lot to make it easier. And our legal systems are pretty similar to each other, when you look

For New York lawyers who write frequently updated blogs [blogspot.com], this could force them to make multiple (and potentially expensive) reports to the New York Bar every single day."

I'm no expert on Greenwald, but doesn't he live in Brazil or something? Would this still affect him? Is he still practicing NY law from another country? Or is it Thomas Ellers that live in NY while Greenwald lives in Brazil?

IIANYL, and this strikes me as a red herring. I've read through this, and the gist of the amendments have to deal with solicitations and advertisements as applied to modern technology. I can't read the arguments on the second link, but there are two things that were immediately clear from reading the amendments. First, they are narrowly construed to apply only to solicitation and advertisement, not publications in general. Second, it is in large part a technological amendment, to deal with new methods of advertisements like pop-up advertisements.

The first is the relevant part. I don't, on the face of it, see how this would preclude blogging. It would prevent blogging as a form of advertisement, but that's the very point of the restrictions on professional attorney and counselor publications. Advertisements for lawyers are permitted insofar, but only insofar, as the advertisement aids the public's ability to make an informed decision. Extensions of that are generally barred as being potentially misleading.

The second comment is relevant because it shows that they are technologically savvy. This gives some hope that even if this comes into force and causes problems, they will be conscious of the problems it creates and amend it appropriately. Incidentally, before this amendment, by interpretation, there appears to be some technical requirement to have every partner's name in the law firm's domain name.

Again, though, I haven't read the criticisms, and I've only given it a once-over. I don't pretend to be defending the NY bar; I don't know the arguments against it. I've just read through it and this is all I could come up with. If there is something there that unduly inhibits an attorney or counselor-at-law's ability to publish online, I would be interested in seeing that amended before it goes into force. If someone points a good argument out to me, I'll be sure to send along my comments, as a member of the bar.

The only criticism I could see was an extraterritorial clause which makes the law apply to out-of-NY lawyers who solicit or advertise their services in NY. But that seems reasonable, given the nexus between the out-of-NY lawyers and their purported NY services, and is totally unrelated to this slashdot article.

So, did anyone else read the headline and think that this was about a bar cracking down on a bunch of lawyers sitting around on their laptops on a free wifi connection and using up all their bandwidth? I suspect the story might be a bit more interesting if the did?

While limitations on advertising by lawyers have been around for a long time, they seem to have their roots in in pre-democratic times, when legal representation was to available to the wealthy if at all and the very practice of law was considered a somewhat questionable activity that had to be strictly regulated in order to be kept respectable. I fail to see any justification for restrictions on the speech of lawyers different from those that apply to everyone else. Lawyers would still be deterred from false advertising and libel by the existing laws of general application. Is there any good reason that censorship by the bar associations should not be eliminated?

While limitations on advertising by lawyers have been around for a long time, they seem to have their roots in in pre-democratic times, when [...] the very practice of law was considered a somewhat questionable activity that had to be strictly regulated in order to be kept respectable.

The practice of law is still widely considered a somewhat questionable activity (hence the regard many people have for lawyers), and it is still one that needs to be strictly regulated (both in the view of nonlawyers and tha

http://en.wikipedia.org/wiki/New_York_State_Bar_As sociation [wikipedia.org], In New York there is no mandatory bar, but the title in the Slashdot summary is confusing because it's not the bar association imposing the rule but the New York's Administrative Board of Courts which is in fact a government entity which all lawyers who wish to practice in New York must abide by.

In which case, they cannot restrict free speech in the form of posting opinion pieces on personal webpages.

In the example given, Glenn Greenwald's blog, his entries are no different than letters to the editor published by the NYT, or live appearances on programs such as Countdown with Keith Olbermann.

I doubt this ruling would stand up to challenge. Perhaps lawyer/bloggers could be required to remove mention of their legal practices from their blog, or change their outlet to a third-party operated blog

I agree with you that there are huge First Amendment issues with the proposed rules. But if they were to go through in that format, most lawyers who need to make a living are not going to take a chance on violating the rules and then using the First Amendment as their defense.

This is just one occupation that is being censored. Because it is lawyers, nobody will stand up and argue. But what other occupations can be censored to make sure that you have to have your information certified on your blogs? Medical blogs? Engineering blogs? Government watchgroup blogs that happen to have a lawyer on their staff? Nutritional blogs? Technology blogs?

If this concept is slightly extended, anyone who has to be certified in any way will have to prove every statement they make on a blog is correct (and pay the fees to do so). There are a lot of jobs that require some sort of certification from the level of operating a nuclear reactor to the level of driving a truck.

the sad part is that they realy arn't trying to censor them.. they just want the money.. i am sure that if someone posts 3 times a day and they have 1000 people posting we get 3000 things every day.. the board isn't going to read a damn one of them.. they might filter it for key words and send it on... they just want the damn money..

Enforcement usually would probably be in response to a complaint of violation; state bar associations tend to have broad powers to discipline their members, and that discipline can be pretty effective given that bar association membership is legally required to practice law.

Thank you. I agree that it is way over the top. I can see where big corporations -- who can pay top dollar for legal information -- would love to see the information become less available to the public. For example, how happy do you think the record labels would be to see my recording industry blog shut down?

Fortunately, though, the entire legal community in New York agrees with you as well, that it is way over the top. So I don't think the rules will go through in that overbroad format.

For those of you who haven't seen the rules, they're posted here [nycourts.gov].